The Role of Customary Principles of International ...ceere.eu/pjiel/wp-content/uploads/2018/01/02.pdf · The Role of Customary Principles of International Humanitarian ... or worse

Pécs Journal of International and European Law - 2017/II

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The Role of Customary Principles of International

Humanitarian Law in Environmental Protection

Viola Vincze LL.M.

Legal advisor at the Ministry of Defence, Legal Department; PhD Candidate at ELTE Law School

Since armed conflicts exist, environment has been a suffering object, a passive victim of hostilities. This

essay attempts to introduce and analyse the contemporary problems deriving from applying the

customary principles of International Humanitarian Law (IHL) to environmental protection. Witnessing

the environment degradation caused by conflicts, there is an unquestionable antagonism between the

seemingly adequate provisions protecting the environment and their practical implementation. IHL sets

forth an unrealistically high threshold of destruction that calls for the rationalisation of legal and

environmental arguments. This article aims to uncover the gaps and weaknesses in the application of

the relevant principles and their assessment is complemented with a short overview of the UN Work

Program concerning reports providing another interpretation of the applicable IHL principles and with

the introduction of NATO standards and doctrines specifically aiming at environmental protection

during operations.

Keywords: International Humanitarian Law, customary rules, environmental protection, NATO

1. Introduction

Throughout millennia, our ancestors have learnt how to occupy territory and exploit its resources.

Subsequently, they successfully cultivated, altered, and manipulated it to reap its benefits. The

interaction and adaptation between human activities and nature became commonplace but as time went

by, our attitude towards nature transformed and developed. Redgwell argues that this development can

be divided into three periods: in the first one, exploitation of resources and other environmental benefits

were dominating, which later gave place to a reactive approach with a rising number of treaties on

pollution abatement, and species and habitat conservation.1 The fundamental change of approach

happened after World War II and nowadays, environmental protection is defined by the precautionary

and preventive approach. It may suggest that humanity learnt to appreciate nature both for the benefits

it provides and for its own intrinsic values. However, our peaceful symbiosis seems quite afar. When

we closer examine the human efforts to protect the environment, there are also signs of systematic abuse

both in time of peace and armed conflict. The environment abuse in time of armed conflict raises

important questions. One of them is whether provisions of International Humanitarian Law (IHL)

concerning environmental protection during armed conflicts are necessary at all. However, if they are,

are they adequate? To answer these questions, we should closer examine the nature of direct and indirect

1 Catherine Redgwell, International Environmental Law, in M. D. Evans (Ed.), International Law, 2nd edn., Oxford University

Press, Oxford 2006, p. 657.


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wartime impacts on the environment,2 which may be extremely severe and may overstretch the

peacetime impacts to the extent that their regulation becomes crucial and unavoidable and therefore a

peacetime-wartime separation.

During armed conflicts environmental damage can occur either as the result of direct attack (against

land, sea and inland waters, air or any natural resources) or as collateral damage in cases where attacks

are directed against military objects or dual-use critical infrastructure (for example water supply,

electricity generation, heating or agriculture). Harm to the environment might include the total or partial

destruction of land,3 marine environment,4 wildlife and agriculture, destabilisation of the surface, flora

and fauna, and it can upset the climate and change weather patterns. But it is only an exemplary list of

possible results; causing (directly or indirectly) harm to the environment may have additional indirect

implications in the near and far future, such as dislocation of people, the growing migration’s effect on

the environment, water scarcity, poor environmental management with decline in production level and

even famine.

Another reason why the peacetime-wartime differentiation might be justified is the growing support for

the ecocentric view. According to their supporters, the “ecosphere … [t]ranscends in importance any

one single species”5 defeating slowly the domination of the opposite anthropocentric perspective which

has always emphasised the needs and wants of human beings and underlining the necessity of preventing

large-scale environmental degradation caused by armed activities. The main aims of legislation

regarding environmental protection are to preserve and protect the natural environment from any adverse

impact and deterioration, and to improve its present state by careful management. By extending this

protection to armed conflicts we not only acknowledge its vital importance in sustaining human life, but

also its inherent values and exceptional attributes which make it indispensable in supporting any life

form on the Earth.

One of the earliest reference indirectly applicable to environmental protection in modern history is found

in the 1868 St Petersburg Declaration6 which states that “the progress of civilization should have the

effect of alleviating as much as possible the calamities of war” and that “the only legitimate object which

state should endeavour to accomplish during war is to weaken the military forces of the enemy.” Another

early indirect reference is contained in the 1899 Hague Declaration,7 according to which, projectiles

cannot be used with the sole purpose of dispersing asphyxiation or deleterious gases. Notwithstanding

the positive effect the above documents may have had, it has to be seen that at the time of adoption of

these declarations, there was no expressed concern regarding environmental protection during

hostilities. Today they are still in force and it is all too tempting to refer to some of their provisions as

2 For more on the adverse impacts of armed conflicts see Nick Middleton, The Global Casino, An Introduction to

Environmental Issues, 4th edn., London Hodder Education, London 2008. 3 Scorched earth policy has accompanied the history of warfare from the ancient Scythians until today. Despite it has been

prohibited by Article 54 of 1977 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the

Protection of Victims of International Armed Conflicts (Protocol I), it still seems to be a familiar routine, see for example the

methods used by the Islamic State http://foreignpolicy.com/2016/04/06/the-islamic-states-scorched-earth-strategy/ (22

August 2017). 4 The impact assessment of uses and values carried out by the IUCN and Collaborators in 1994 (The 1991 Gulf War:

Environment Assessment of IUCN and Collaborators) serves with an estimation and review on the extent of damage done to

the flora and fauna, the cleanup activities and possible assistance needed after the Gulf War.

http://www.greenpeace.org/international/Global/international/planet-2/report/1994/4/the-1991-gulf-war-environment.pdf (22

August 2017). 5 J Stan Rowe, Ecocentrism and Traditional Ecological Knowledge

www.ecospherics.net/pages/Ro993tek_1.html (22 August 2017). 6 1868 St Petersburg Declaration Renouncing the Use, in Time of War, of Explosive Projectiles under 400 Grammes Weight. 7 1899 Declaration (IV, 2) concerning Asphyxiating Gases.

http://foreignpolicy.com/2016/04/06/the-islamic-states-scorched-earth-strategy/

http://www.greenpeace.org/international/Global/international/planet-2/report/1994/4/the-1991-gulf-war-environment.pdf

http://www.ecospherics.net/pages/Ro993tek_1.html%20(22


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relevant to environmental protection.8 Anxiety about the damage became more pronounced at the dawn

of the twentieth century, when states gradually started to retreat from the extensive and intentional

destruction of nature, and after World War II and the Vietnam War concerns gave way to IHL

regulations regarding environmental protection in times of armed conflict: Additional Protocol I9 and

the ENMOD10 Convention.11 It seems that by today, the devastating effects of modern warfare inflicted

by hostile forces and the findings of scientific research regarding the effects of the environment abuse

and degradation facilitated the recognition that exposing the environment to impacts of warfare should

be avoided.

2. Different Levels and Regimes of Environmental protection

From time immemorial humankind intended to control and manipulate its surroundings. It meant better

or worse resource management on the small scale and substantial modification of the environment on

the large scale. The quests to conquer and control (involving military activities) were able to produce

adverse multidimensional impact on land, water, air quality and natural resources, and implications of

damages caused to nature stretched far beyond the obvious degradation. They also constitute financial,

aesthetic, recreational, emotive loss, the lost bequest and option value (often beyond recovery), as well

as the actual cost of restitution.12 Concerning the legal aspect, national environmental legislation creates

the most realistic and feasible framework to implement environmental standards regarding the protection

of the environment, however, “states and specialized agencies realized fairly rapidly that purely national

environmental policies were inadequate in view of the magnitude and the transnational nature of many

environmental problems, and that it was essential to adopt international rules.”13 In order to avoid

clashes, national legal orders were to accept the universally recognised rules and regulations of

International Law (conventions, protocols, agreements) and harmonise the internal laws and statutes

with the obligations assumed under International Law. (Article 27 of the 1969 Vienna Convention on

the Law of Treaties declares that “a party may not invoke the provisions of its internal law as justification

for its failure to perform the treaty.”) Apart from treaties on the international plane, bilateral, multilateral

and regional agreements can also contribute to the development of international standards and principles,

8 See for example Alexandre Kiss & Dinah Shelton, Guide to International Environmental Law, Martinus Nijhoff Publisher,

Leiden 2007, p. 254. 9 1977 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of

International Armed Conflicts (Protocol I). 10 1976 Convention on the prohibition of military or any hostile use of environmental modification techniques. 11 The ENMOD Convention’s history started in 1970 at Stockholm where, under the egis of the United Nations, an

environment conference was held which adopted a Declaration stating, inter alia, that states have the responsibility “to ensure

that activities within their … [c]ontrol do not cause damage to the environment of other States” (Principle 21 of the

Declaration of the United Nations Conference on the Human Environment (A/CONF.48/14/Rev.1, Chapter 1)). Following the

Conference, the US Government and the Soviet Union both supported the possibility of an international agreement, and in

July 1974, President Nixon and General Secretary Brezhnev “formally agreed to hold bilateral discussions on how to bring

about ‘the most effective measures possible to overcome the dangers of the use of environmental modification techniques for

military purposes’” (U.S. Department of State, Diplomacy in Action website https://www.state.gov/t/isn/4783.htm (5

September 2017)). The discussions held between the two nations in 1974 and 1975 resulted in agreement on a common

approach and, after intensive negotiations, the text of the draft ENMOD Convention could be agreed upon. For more on the

procedural history of ENMOD Convention, see the United Nations website

http://legal.un.org/avl/ha/cpmhuemt/cpmhuemt.html (5 September 2017). 12 For more on the subject see Christopher D Stone, The Environment in Wartime: An Overview, in J. E. Austin & C. E.

Bruch (Eds.), The Environmental Consequences of War; Legal, Economic and Scientific Perspectives, Cambridge University

Press, Cambridge, 2000. 13 Antoine Bouvier, Protection of the Natural Environment in Time of Armed Conflict, International Review of Red Cross

No. 285, 31 December 1991, p. 567.

https://www.state.gov/t/isn/4783.htm

http://legal.un.org/avl/ha/cpmhuemt/cpmhuemt.html


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therefore accession to these instruments shall also be encouraged.14 The prerequisite of assessing the

question of environmental protection in times of armed conflict is the fact that environment is to be

regarded as a civilian object in IHL and enjoys protection accordingly. There is only one specific

provision in IHL treaty law protecting the environment according to which “care shall be taken to protect

the natural environment against widespread, long-term and severe damage.”15 The environment is

however given an additional protection by the application of IHL principles, which is in the focus of the

present essay. Before introducing these principles, let us specify those areas of International Law whose

provisions and principle may also have a direct effect on environmental protection.

2.1. Different Regimes of Law Protecting the Environment During Armed

Conflicts

Four complementing bodies of International Law constitute the legal framework with provisions directly

aiming at protecting the environment.

A wide range of International Environmental Law (IEL) provisions apply during armed conflict

including not only multilateral or regional agreements but also customary principles of IEL (e.g.

responsibility for environmental damage or the precautionary principle).16

International Human Rights Law is also to be included in this exclusive list by virtue of

containing Human Rights with a strong link to environmental protection (right to life, private

life or the right to a standard of living adequate for the health and well-being).17 This link is

however based on highlighting the green aspects of existing Human Rights rather than adding

new rights to the existing treaties.18 Securing a higher degree of environmental protection based

on the degradation’s possible effects on life itself and the quality of life (health) require

governments to regulate circumstances and situations, which may lead to environmental harm

and thereby adversely affect Human Rights.

The third pillar, International Criminal Law deals with individual (international) criminal

responsibility. Grave breaches of IHL include actions, which indirectly result in environmental

damage (widespread, long-term and severe damage to the natural environment clearly excessive

in relation to the military advantage anticipated).19

14 For more on the importance of accession see Harry H Almond Jr, Weapons, War and the Environment, Georgetown

International Environmental Law Review, Vol. 3, 1990, pp. 167-197. 15 Art. 55 of Additional Protocol I. 16 According to the UNEP’s analysis, “Many argue that the precautionary principle, the principle of pollution prevention and

the right to a healthy environment either are or are emerging as principles of customary international law.” in: Protecting the

Environment During Armed Conflict, An Inventory and Analysis of International Law, United Nations Environment

Programme, 2009, p 40

http://www.un.org/zh/events/environmentconflictday/pdfs/int_law.pdf (22 August 2017). 17 Arts. 3, 12 and 25 of Universal Declaration of Human Rights, Art. 6 of International Covenant on Civil and Political

Rights, Arts. 2 and 8 of the European Convention on Human Rights, Arts. 4, 14, 16 and 24 of African Convention on Human

and Peoples’ Rights, Arts. 4, 11, 21 of the American Convention on Human Rights. 18 Alan Boyle, Human Rights and the Environment: Where Next?, European Journal of International Law, Vol. 23, No. 3, 1

August 2012, p. 614. 19 According to Art. 8 (2) (b) (iv) of the Rome Statute, “intentionally launching an attack in the knowledge that such attack

will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe

damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military

advantage anticipated” constitutes a war crime by virtue of violating of the laws and customs applicable in international

armed conflict.

http://www.un.org/zh/events/environmentconflictday/pdfs/int_law.pdf%20(22


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The fourth pillar in the legal structure of environmental protection is IHL, which seeks to

regulate the protection of not only those who are not (or no longer) taking part in the hostilities

and the conduct of hostilities but also the protection of civilian objects like the environment.

2.2. The Principles of IHL Applicable to Environmental protection

“Custom is at the core of the jus in bello”20 coexisting with the treaty law in force. Any custom presumes

the existence of consistent state practice (by the majority of states) and the opinion juris sive necessitatis,

namely the conviction that their action is based on an obligation. According to Richards and Schmitt,21

the customary principles of the law of war can be derived from the basic standard that the right of any

belligerent to adopt means of injuring the adversary is not unlimited,22 or, according to the contemporary

phrasing of Article 35 (1) of Additional Protocol I, “in any armed conflict, the right of the Parties to the

conflict to choose methods or means of warfare is not unlimited.” In this restatement, the editors of the

instrument made it clear that the protection shall be extended to the civilian population and civilian

objects too – including the natural environment. Regarding this rule, Baker has rightly argued that

“standing on its own, however, limitation provides basic wartime environmental protection.”23 This

provision therefore shall be studied and interpreted in connection with the principles of IHL, first and

foremost with the principle of distinction, whose customary status, Roscini points out, “is nowadays

well-established,”24 according to which parties to the conflict shall distinguish between civilian objects

and military objectives and shall direct any operation solely against military objectives.25 (When there

is a choice possible between several military objectives for obtaining a similar military advantage, the

one causing the least danger to civilian objects26 must be selected.)27 The rest of the customary IHL

norms originate from this sole rule being the first significant step in introducing limitations on the

modern battlefield; the ICJ found it to be a “cardinal principle”28 intransgressible at all time.

2.2.1. Martens Clause

Assessing the dawn of IHL clauses and principles with an indirect link to environmental protection, the

Martens Clause29 may prove a valuable starting point.

20 Michael N. Schmitt, Green War: An Assessment of the Environmental Law of International Armed Conflict, Yale Journal

of International Law, Vol. 22., No. 1, Winter 1997, p. 51. 21 Peter J. Richards & Michael N. Schmitt: Mars Meets Mother Nature: Protecting the Environment during Armed Conflict,

Stetson Law Review, Vol. 28, 1999, p. 1075. 22 Art. 22 of the 1907 Hague Convention IV Respecting the Laws and Customs of War on Land. 23 Betsy Baker, Legal Protection for the Environment in Times of Armed Conflict, Virginia Journal of International Law,

Vol. 33, 1992/93, p. 360. 24 Marco Roscini, Targeting and Contemporary Aerial Bombardment, International and Comparative Law Quarterly, Vol. 54,

2005, p. 413. 25 Art. 48 of Additional Protocol I. 26 According to Art. 52 (2) of Additional Protocol I, military objects are those “which by their nature, location, purpose or use

make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the

circumstances ruling at the time, offers a definite military advantage.” 27 Art. 57 (3) of Additional Protocol I. 28 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, p. 257, Para 78. 29 The Clause was named after its drafter, Friedrich Martens who was part of the Russian delegation.


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The first codification of the Martens Clause is found in the preamble of 1899 Hague Convention II with

Respect to the Laws and Customs of War on Land30 which was followed by a slightly changed

formulation in the Preamble of the 1907 Hague Convention IV respecting the Laws and Customs of War

on Land.31 Although according to Cassese, “the clause essentially served as a diplomatic ploy”32 and

was “part of a diplomatic manoeuvring to overcome political difficulties,”33 it proved to be a valuable

help in interpreting IHL and continues to have an undeniable impact not just on civilians and those

taking part in the hostilities, but also on policy makers and the public.

The 1949 Geneva Conventions did not contain the clause among their provisions and it appeared again

only in Additional Protocol I34 and II.35 Article 1 (2) of Protocol I exceeds the Protocol itself and other

conventional instruments of humanitarian law too, when it places the prospective victims under the

protection and authority of the principles of International Law derived from established custom, the

principles of humanity and dictates of public conscience. Although the Martens Clause underlines the

requirement that parties to an armed conflict shall not fight without certain limitations imposed on them,

Additional Protocol I does not clarify the notions of “principles of humanity” and “dictates of public

conscience” whose content is therefore still subject to arguments. The provision has already given place

to various interpretations since it puts the emphasis onto humanity and standards of public conscience

instead of referring to state practice. The formulation of Martens Clause demonstrates not just the

significance attributed to the principles of humanity and dictates of public conscience but - by being

ambiguous - the elusive nature of the concepts, too. There is also a debate among legal experts whether

it generates new sources of law, identifies principles of International Law, or creates legal standards

inspiring development of International Humanitarian Law.36

The core question however relates to the content of the Clause, which seems to bring in natural law in

the way of representing moral values guiding human conduct during hostilities.37 In the Commentary of

Additional Protocol I (Geneva, 1987) the ICRC argues that since no IHL codification can be regarded

complete given the complex nature of the regulated subject, “the Martens clause prevents the assumption

that anything which is not explicitly prohibited by the relevant treaties is therefore permitted”38 or as

Ticehurst puts it, “the Clause provides that something which is not explicitly prohibited by a treaty is

not ipso facto permitted.”39

30 “ … [i]n cases not included in the Regulations adopted by them (Parties), populations and belligerents remain under the

protection and empire of the principles of international law, as they result from the usages established between civilized

nations, from the laws of humanity and the requirements of the public conscience.” 31 “Until a more complete code of the laws of war has been issued, the High Contracting Parties deem it expedient to declare

that, in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the

protection and the rule of the principles of the law of nations, as they result from the usages established among civilized

peoples, from the laws of humanity, and the dictates of the public conscience.” 32 Antonio Cassese, The Martens Clause: Half a Loaf or Simply Pie in The Sky?, European Journal of International Law, Vol.

11, 1 March 2000, p. 198. 33 Cassese 2000, p. 216. 34 According to Art. 1 (2) of Additional Protocol I, “In cases not covered by this Protocol or by other international

agreements, civilians and combatants remain under the protection and authority of the principles of international law derived

from established custom, from the principles of humanity and from dictates of public conscience.” 35 1977 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-

International Armed Conflicts (Protocol II). 36 Cassese 2000. 37 For more on the influence of natural law on IHL see Rupert Ticehurst, The Martens Clause and the Laws of Armed

Conflict, International Review of Red Cross, No. 317, 1997, pp. 125-134. 38 Commentary of 1987, General principles and scope of application, p. 39, Para 55. 39 Ticehurst 1997, p. 126.


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It is the opinion of this author that the Martens Clause shall be interpreted as considering the demands

deriving from humanity conveyed by the public conscience, but it should also be underlined that

although it was considered in decisions of international courts,40 no court has ever based its decision

solely on the Martens Clause.41 Projecting the above onto environmental protection, it can be concluded

that the Martens Clause is an autonomous principle, which can contribute to the preservation of

environment by creating a boundary for military considerations, prohibiting conduct of hostilities

(means and methods) which are exceeding the degree necessary for attaining a definite military

advantage. According to the Clause, principles of general International Law apply during armed

conflicts even if there is no particular provision in the concerning treaty law. With IHL being silent on

a certain matter, the Martens Clause may serve as a backdoor that ensures that other sources of

International Law may provide protection to the natural environment.

2.2.2. The Principle of Military Necessity

Similarly to the Martens Clause, the precise content and practical feasibility of the principle of military

necessity is also somewhat blurred. Military necessity is basically the concept of legally using only that

kind and degree of force which is required to overpower the enemy. At the heart of the concept lies the

criterion that no defence (no excuse) shall be provided for unlawful actions committed during hostilities.

Unlike the generally acceptable interpretation of military necessity as humanity’s counterbalance,

Hayashi provides a refreshing new approach of regarding military necessity as being normatively

indifferent permitting both the pursuit and abandonment of military necessities.42

It is mentioned in the Preambles of Hague Convention II43 and Hague Convention IV44 but it is regulated

expressis verbis only in Article 23 (g) of the 1907 Hague Convention IV (reflecting customary law),

which indicates that any destruction or seizure of the enemy’s property, unless such destruction or

seizure be imperatively demanded by the necessities of war, is forbidden. This formulation clearly points

to the limited power of the adversaries to cause harm to their enemies. The concept of Hague Convention

IV requires the destruction to be “imperatively demanded by the necessities of war”, however, no

adequate definition is provided, so a less restrictive interpretation may allow the term to be twisted into

the required direction allowing acts not militarily necessary. It is also important whether we assess one

particular situation involving environment destruction or longer term military plans including the

possibility of detrimental environmental effects. If the latter idea prevails, the ability to justify

destruction can be seriously undermined.45 As Schmitt puts it, “the degree of military advantage …

40 See for example the Trial Chamber Decision of the International Criminal Tribunal for the Former Yugoslavia on 8 March

1996 issuing an international arrest warrant against Milan Martić (IT-95-11-R61), p. 5, Para 13 and Legality of the Threat or

Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, p. 257, Para 78. 41 The International Court of Justice referred to it as “an effective means of addressing the rapid evolution of military

technology.” Nuclear Weapons 1996, p. 257, Para 78. 42 See Nobuo Hayashi, Military Necessity as Normative Indifference, Georgetown Journal of International Law, Vol. 44,

2013, pp. 675-782. 43 “ … [i]n the view of the High Contracting Parties, these provisions … [s]o far as military necessities permit, are destined to

serve as general rules of conduct for belligerents in their relations with each other and with population …” 44 “… [t]hese provisions … [a]s far as military requirements permit, are intended to serve as a general rule of conduct for the

belligerents and their mutual relations and in their relation with the inhabitants …” 45 Rex Zedalis, Burning of the Kuwaiti Oilfields and the Laws of War, Vanderbilt Journal of Transnational Law, Vol. 24,

1991, p. 714.


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[i]nfluences its normative admissibility.”46 This author shares Luban’s opinion47 that the licensing

function of IHL is not as fundamental as the constraining function. Hague Convention II and IV are still

in force and Green underlines the fact that the rules embodied in these documents have been adopted

and adjusted to military requirements; therefore, “the mere plea of military necessity … [i]s not

sufficient to evade compliance with the laws of war.”48

Another example for regulating military necessity can be found in the London Charter49 establishing the

Nuremberg Tribunal and the judgment of the Nuremberg Military Tribunal in the Hostage Case50

provides important references to the development of the concept. In the case, the United States

prosecuted German military commanders charging the defendants with committing war crimes and

crimes against humanity. Regarding General Rendulic the defence has invoked the concept of military

necessity in order to justify the destruction caused by the retreating German 20h Mountain Army that

followed the scorched earth policy in the Norwegian province of Finnmark destroying villages and

isolated habitations. As a result of the trial a concept emerged (Rendulic Rule) according to which,

situations, circumstances and evidence have to be judged as they appeared to the defendant at the time

(the question being whether the defendant could “honestly conclude that urgent military necessity

warranted the decision made”). The judges opined that based on the evidence available at the time, the

General rightly assumed possible Russian attacks and ordered “to carry out the ‘scorched earth’ policy

in Finnmark as a precautionary measure against an attack by superior forces”51 and therefore the

defendant was found not guilty on this charge.

The Geneva Conventions of 1949 hardly contain any reference to the principle of military necessity for

the rules regarding the conduct of hostilities were considered part of customary IHL, and therefore the

Conventions have not encompassed these apart from a few references. Article 53 of the Fourth Geneva

Convention Relative to the Protection of Civilian Persons however provides that “any destruction by the

Occupying Power of real or personal property belonging … [t]o private persons, or to the State, or to

other public authorities, or to social or cooperative organizations, is prohibited, except where such

destruction is rendered absolutely necessary by military operations.” The scope of Article is limited

however to prohibited destruction in occupied territories.52 In cases where there is no occupation and

parties to the conflict have not ratified Additional Protocol I,53 Article 23 (g) of Hague Convention (IV)

46 Peter J. Richards & Michael N. Schmitt, Mars Meets Mother Nature: Protecting the Environment during Armed Conflict,

Stetson Law Review, Vol. 28, 1999, p. 1074. 47 David Luban, Military Necessity and the Cultures of Military Law, Leiden Journal of International Law, Vol. 26, 2013, p.

320. 48 Leslie C. Green, The Contemporary Law of Armed Conflict, 3rd edn., Juris Publishing, Manchester University Press,

Manchester 2008, p. 147. 49 According to Art. 6 (b) of the London Charter of the International Military Tribunal, “the following acts ... [a]re crimes

coming within the jurisdiction of the Tribunal for which there shall be individual responsibility:

(b) war crimes: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to ...

[p]lunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military

necessity.” 50 Hostage Case, United States v List (Trial Judgment) (Nuremberg Military Tribunal, Trial Chamber, Case No 7, 19

February 1948) 8 LRTWC 34 in Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council

Law No. 10, Volume XI/2. 51 Hostage Case, United States v List (Trial Judgment) (Nuremberg Military Tribunal, Trial Chamber, Case No 7, 19

February 1948) 8 LRTWC 34 in Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council

Law No. 10, Volume VIII, p. 69. 52 According to Art. 42 of Hague Convention (IV), „territory is considered occupied when it is actually placed under the

authority of the hostile army. The occupation extends only to the territory where such authority has been established and can

be exercised.” 53 Art. 55 (1) sets forth that “care shall be taken in warfare to protect the natural environment against widespread, long-term

and severe damage. This protection includes a prohibition of the use of methods or means of warfare which are intended or


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will be applicable as it was in case of the extensive environmental damage54 caused by Iraq in Kuwait

during the Gulf War.

Military necessity is problematic from another aspect too as the identification and determination of the

parties’ intent is always context sensitive and can be decided on the basis of causality and by eliminating

any unnecessary and wanton destruction. Clarifying whether environment destruction was crucial to

secure any military advantage and balancing between military necessity and environmental concerns

will be always challenging, unless a universally acknowledged interpretation of these terms will be

accepted. As the ICJ put it in the Nuclear Weapons Advisory Opinion, “states must take environmental

considerations into account when assessing what is necessary and proportionate in the pursuit of

legitimate military objectives. Respect for the environment is one of the elements that go to assessing

whether an action is in conformity with the principles of necessity and proportionality.”55

2.2.3. The Principle of Humanity

The principle protecting indirectly the natural environment in times of armed conflict is the principle of

humanity “prohibiting inhumane methods and means of warfare, and usually applied to human suffering

– may conceptually offer an avenue for expanding protection of the environment.”56 The thought of

decency, charity and the goodwill to alleviate suffering has been present in the humanitarian law for a

long time. It refers to the attitude of humanity towards the defeated by regarding them as part of

humankind and equals to the victors, which shall protect life, integrity, health and dignity by protecting

the vanquished from inherently wrongful acts. After the horrors of the Second World War, the allied

powers brought the International Military Tribunal to life, which was rendered to try and punish the

major war criminals of the European Axis among others for crimes against humanity.57 According to

Article 6 (c) of the Charter of the Military Tribunal,58 “the Tribunal shall have power to try and punish

persons, who committed … [c]rimes against humanity: … [o]ther inhuman acts committed against any

civilian population before or during the war […], whether or not in violation of the domestic law of the

country where perpetrated.” The enumeration of Article 6 (“other inhuman acts”) is open-ended leaving

may be expected to cause such damage to the natural environment and thereby to prejudice the health or survival of the

population.” 54 Destruction of oil wells, oil spills in the Gulf, pollution to the air, the forming of hundreds of oil lakes, disruption of the

desert surface, damaging vegetation, destruction of livestock animals, etc. For more on the subject see O. Linden & A.

Jerneloev & J. Egerup, The Environmental Impacts of the Gulf War 1991, IIASA Interim Report April, 2004

http://pure.iiasa.ac.at/7427/1/IR-04-019.pdf (25 August 2017) and William M. Arkin & Damian Durrant & Marianne Cherni,

On Impact, Modern Warfare and the Environment, A Case Study of the Gulf War, Greenpeace Study, 1991

http://www.greenpeace.org/international/Global/international/planet-2/report/1991/6/on-impact-modern-warfare-and.pdf (25

August 2017). 55 Nuclear Weapons 1996, p. 242, Para 30. 56 Michael N. Schmitt, War and the Environment: Fault Lines in the Prescriptive Landscape, in J. E. Austin & C. E. Bruch

(Eds.), The Environmental Consequences of War; Legal, Economic and Scientific Perspectives, Cambridge University Press,

Cambridge, 2000, p. 101. 57 Crimes inseparable from the principle of humanity. 58 1945 Charter of the International Military Tribunal (Nuremberg).

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space for including acts which, apart from injuring human life, health and dignity,59 can inflict damage

upon the environment too, by poisoning water, destroying crops and food,60 setting oil ablaze.

While alleviating human suffering, the principle of humanity can apparently promote the expanded

protection for the environment, too. One of the most significant contemporary definitions of crimes

against humanity is found in the Rome Statute. Its Article 7 renders punishable “(k) other inhumane acts

of a similar character intentionally causing great suffering, or serious injury to body or to mental or

physical health” and according to Green, “once a charge of crimes against humanity is lodged there is

no real reason to bring any other, since such a charge may be regarded as ‘wholesale’ in character,

embracing within itself all other breaches of the law of armed conflict.”61 All things considered, the

principle of humanity, as opposed to its name, might promote the development of the ecocentric concept

and it can be conveniently expanded to the protection of certain elements of the natural environment. It

may also prove to be a possible avenue for “green” Human Rights (e.g. the right to healthy environment

or right to natural resources) to flow into IHL.

2.2.4. The Principle of Proportionality

The customary principle of proportionality refers to the undissolvable balancing between two competing

interests: military advantage and environmental damage. The concept of proportionality is not

mentioned expressis verbis in the Geneva Conventions and in Additional Protocol I, there is a clear

reference however in Article 51 (5) (b) of the Protocol to the requirement of proportionality62 and it is

also regulated among the war crimes in Article 8(2)(b)(iv) of the Rome Statute.63 Partly because of the

limited number of provisions and partly because of the extensive scope of possible interpretations of the

expressions used in the Protocol and in the Statute, the practical application of this principle may be

demanding. It requires the finding of an implementable, viable and rational balance between military

advantage and environmental damage.

Any military advantage anticipated shall be calculated corresponding to the attack in question and not

to the military operation or the armed conflict as a whole by the reasonable military commander in

charge, on the grounds of the information available when making any decision on such attack. Since the

text refers to the military advantage anticipated, what matters is the believed probability of the outcome

and not the actual effect. No military action shall ensue collateral damage “disproportionate to the

anticipated military advantage likely to result.”64 The military advantage shall be concrete and direct,

59 According to Para 28 of the Sentencing Judgement of the ICTY in the Prosecutor v Drazen Erdemović case (Judgement of

29 November 1996, IT-96-22-T), “crimes against humanity are serious acts of violence which harm human beings by striking

what is most essential to them: their life, liberty, physical welfare, health and dignity. They are inhumane acts which by their

extent and gravity go beyond the limits tolerable to the international community, which must perforce demand their

punishment.”

http://www.unhcr.org/refworld/docid/402765a27.html (25 August 2017). 60 E.g. Arts. 54 and 56 of Additional Protocol I. 61 Leslie C. Green: The Contemporary Law of Armed Conflict, 3rd edn., Juris Publishing, Manchester University Press,

Manchester, 2008, p. 362. 62 “An attack which may be expected to cause … [d]amage to civilian objects … [w]hich would be excessive in relation to

the concrete and direct military advantage anticipated.” 63 “For the purpose of this Statute, ‘war crimes’ means […] (b) other serious violations of the laws and customs applicable in

international armed conflict … [n]amely, any of the following acts: (iv) intentionally launching an attack in the knowledge

that such attack will cause … [w]idespread, long-term and severe damage to the natural environment which would be clearly

excessive in relation to the concrete and direct overall military advantage anticipated.” 64 Michael N. Schmitt, War and the Environment: Fault Lines in the Prescriptive Landscape, in J. E. Austin & C. E. Bruch

(Eds.), The Environmental Consequences of War; Legal, Economic and Scientific Perspectives, Cambridge University Press,

Cambridge, 2000, p. 103.

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ruling out the opportunity to aim at indirect, potential, immeasurable or indeterminate military advantage

and the disproportion in question should be clearly perceptible (the phrasing of the Statute “clearly

excessive” discards any excessiveness not obvious for the military commander in charge). It has to be

recognized though that even when proportionality is observed, “an attack against a military objective is

apt to produce lawful collateral damage to the environment.”65

However, how can one measure the devastation caused for example by setting oil rigs ablaze, spilling

crude oil into the Persian Gulf and into the desert in Kuwait on a military scale? Putting it differently,

how can a definite military advantage be expressed in terms of environmental damage? It definitely

requires our reasonable military commander to think, analyse and balance rationally and sensibly when

deciding on the fine line separating proportionate and disproportionate damage as “the very subjectivity

of value renders agreement on specific balances highly elusive.”66 The most important factors to be

considered are the civilian nature of natural environment67 and the possible extent of foreseeability

regarding collateral damage.68 Again, Schmitt interprets this question as an antagonism between

anthropocentricism with its emphasis on (military) utility and ecocentricism advocating the intrinsic

values of nature,69 which, though noble as it is, will probably not be resolved satisfactorily in the near

future and therefore will leave space for competing interests and interpretations.

2.2.5. The Principle of Unnecessary Suffering

The most important rules for the methods and means of warfare are set in Part III, Section I of the

Additional Protocol I. According to the basic rules,70 parties do not have an unlimited choice of methods

and means of warfare and cannot employ weapons, methods and means that are of a nature to cause

superfluous injury or unnecessary suffering.71 This rule appeared first in the 1868 St Petersburg

Declaration72 and was later reiterated in Hague Convention IV,73 according to which it is especially

forbidden to employ arms, projectiles, or material calculated to cause unnecessary suffering. Long time

passed by until the codifiers decided to revive this rule in order to reconfirm its relevance. As a result,

the Convention on Certain Conventional Weapons (CCW) serves as an umbrella convention74 in order

to ban or restrict the use of specific weapons that are believed to cause unnecessary suffering to

combatants or to affect civilians, because of their indiscriminate feature; the concept of the unnecessary

65 Yoram Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict, 3rd edn., Cambridge

University Press, Cambridge 2016, p. 231. 66 Michael N. Schmitt. The Environmental Law of War: An Invitation to Critical Reexamination, Military Law and Law of

War Review, Vol. 36, No. 1 and 2, 1997, p. 23. 67 I.e. it is considered a military object. 68 I.e. how far shall the commander look ahead. 69 Michael N. Schmitt, Green War, An Assessment of the Environmental Law of International Armed Conflict, Yale Journal

of International Law, Vol. 22, No. 1, 1997, p. 56. 70 Art. 35 (1)-(3). 71 Art. 35 (2). 72 1868 Declaration Renouncing the Use, in Time of War, of certain Explosive Projectiles. 73According to Arts. 22 and 23 (e) in Section II of the 1907 Hague Convention IV Respecting the Laws and Customs of War

on Land, “the right of belligerents to adopt means of injuring the enemy is not unlimited” and it is “especially forbidden to

employ arms, projectiles, or material calculated to cause unnecessary suffering.” 741980 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to

Be Excessively Injurious or to Have Indiscriminate Effect; its five Protocols address non-detectable fragments; mines, booby-

traps and other devices; incendiary weapons; blinding laser weapons and explosive remnants of war.


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suffering shall also extend to unnecessary destruction of property and thus to damage to the environment

(US Joint Doctrine for Targeting).75

According to Rule 70 of the Customary International Humanitarian Law Study by the International

Committee of Red Cross (ICRC),76 the use of means and methods of warfare which are of a nature to

cause superfluous injury or unnecessary suffering is prohibited. Adopting this rule as a norm of

customary International Law was intrinsically the confirmation of what has already been set forth in

many instruments (St Petersburg Declaration, Hague Convention IV, Additional Protocol I, CCW), and

supported by the International Court of Justice as a “cardinal principle of International Humanitarian

Law”77 introducing unnecessary suffering as a “harm greater than that unavoidable to achieve legitimate

military objectives”. If an anticipated use of certain weapon would not meet the requirements of IHL,

“a threat to engage in such use would also be contrary to that law”.78 Though the prohibition of the

employment of such weapons is given voice in the above instruments, it might not be easy to invoke

this principle once a weapon is integrated in the weaponry, as states are not under the obligation to

decide on an already assessed and approved weapon’s further use according to Article 36 of the

Additional Protocol I.

2.2.6. The Principle of Precaution

Article 57 (1) of Additional Protocol I states that “in the conduct of military operations, constant care

shall be taken to spare the civilian population, civilians and civilian objects.” In case of deciding on an

attack, all “feasible precaution”79 should be taken in the choice of means and methods of attack in order

to avoid or minimize incidental damage to civilian objects and no attack should be launched80 in case it

may be expected to cause incidental damage to civilian objects, which would be excessive in relation to

the concrete and direct military advantage anticipated.81 Although the environment is not mentioned

explicitly in Article 57 and 58 (precautions against the effects of the attack), it is considered being a

civilian object82 and therefore the protection afforded by Article 57 and 58 extends to it.

2.3. Contemporary Targeting and Protection of the Environment

When engaging in any military operation with the potential of causing environmental damage either

intentionally or incidentally, prevention and mitigation of adverse effects is required not only by various

75 A-1 Appendix A, US Joint Doctrine for Targeting, 2002 https://www.hsdl.org/?abstract&did=472330 (25 August 2017). 76 Jean-Marie Henckaerts & Louise Doswald-Beck, Customary International Humanitarian Law, Volume I: Rules,

International Committee of Red Cross, Cambridge University Press, Cambridge 2007. 77 Nuclear Weapons 1996, p. 257, Para 78. 78 Nuclear Weapons 1996, p. 257, Para 78. 79 According to Art. 3 (10) of Protocol (II) on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other

Devices annexed to the 1980 Convention on Certain Conventional Weapons, feasible precautions cover “precautions which

are practicable or practically possible taking into account all circumstances ruling at the time, including humanitarian and

military considerations.” 80 Attacks may be cancelled or suspended in case excessive damage is expected in relation to the military advantage. 81 Arts. 57 (2) a) ii)-iii) and 57 (2) b) of Additional Protocol I. 82 According to Art. 52 of Additional Protocol I, “1. Civilian objects shall not be the object of attack or of reprisals. Civilian

objects are all objects which are not military objectives as defined in paragraph 2.

2. Attacks shall be limited strictly to military objectives. In so far as objects are concerned, military objectives are limited to

those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total

or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.”

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sources of International Humanitarian Law, but also by the values attached to the natural environment.

The worth assigned to nature eventually depends on not only the legal provision and customary law but

also on the geographic location where the operation (conflict) takes place, the context (objectives of the

operation), as well as on the mind set of those in command. According to the contemporary regulations

of targeting, lawful attacks against military objectives shall be limited to those targets which effectively

contribute to a military action “or, at least, be about to do so,”83 and whose destruction, capture or

neutralisation, in the circumstances ruling at the time, offers a definite military advantage.84 Speculative,

indistinctive or potential advantages are ruled out by the definition. As Schmitt argues, the phrase

“civilian object” can be interpreted “as including all components of the environment - land, air, flora,

fauna, atmosphere, high seas, etc. - that do not present an advantage (such as cover) to a military

operation.”85

In order to ensure a high regard for the environment, the Parties to the armed conflict shall at all times

distinguish between civilian objects and military objectives, and shall target only military objectives.86

Indiscriminate attacks are prohibited by Article 51 (4) of Additional Protocol I, and even military

objectives cannot be attacked if such attack “may be expected to cause incidental damage to civilian

objects, which would be excessive in relation to the concrete and direct military advantage

anticipated.”87 Additional Protocol I holds further powerful constraints regarding targeting: according

to Article 57, everything feasible shall be done by the planners and decision makers in order to verify

that the objectives to be attacked are military objectives and that their attack is not prohibited by special

protection and evade or at least minimise incidental damage to civilian objects; military commanders

shall avoid launching any attacks which may be expected to cause collateral damage to civilian objects

(including the natural environment) which would be excessive relative to the concrete and direct military

advantage anticipated.88 Parties shall take all necessary precautions to protect the natural environment

against the adverse effects of military operations,89 and if the attack is inescapable, whenever a choice

is possible between more military objectives, on the basis of the available information, the objective

expected to cause the least danger to the environment must be selected.90

The Rome Statute also renders the extensive destruction of property not justified by military necessity

and carried out unlawfully and wantonly, to be a war crime,91 alongside with the deliberate conduct of

any attack against civilian objects92 and the intentional launching of any attack in the knowledge that it

will cause widespread, long-term and severe damage to the environment – clearly excessive in relation

to the concrete and direct overall military advantage anticipated.93 According the Cassese, the expression

83 Marco Roscini, Protection of the Natural Environment in Time of Armed Conflict, unproofed version, 2009, p 16

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1351888 (25 August 2017). 84 Art. 52 (2) of Additional Protocol I. 85 Schmitt 2000, p. 97. 86 Art. 48 of Additional Protocol I. 87 Ibid Art. 51 (5) (b). 88 Ibid Art. 57 (2) (a) (i)-(iii). 89 Ibid Art. 58 (c). 90 Ibid Art. 57 (3). 91 Art. 8 (2) (a) (iv). 92 Art. 8 (2) (b) (ii) “For the purpose of this Statute, ‘war crimes’ means: … [O]ther serious violations of the laws and

customs applicable in international armed conflict, within the established framework of international law, namely, any of the

following acts: … [I]ntentionally directing attacks against civilian objects, that is, objects which are not military

objectives…” 93 Art. 8 (2) (b) (iv) “For the purpose of this Statute, ‘war crimes’ means: … [O]ther serious violations of the laws and

customs applicable in international armed conflict, within the established framework of international law, namely, any of the

following acts: … [I]ntentionally launching an attack in the knowledge that such attack will cause incidental loss of life or

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within the established framework of international law is “intended to convey the notion that for the

authors of the Statute the various classes of war crimes specified in Article 8 (2) (b) and (e) are already

part of the established framework of international law.”94 This latter, already mentioned rule of

proportionality (“clearly excessive”) sets an extremely high threshold of application requiring the

decision maker to continuously balance military and humanitarian values when developing, validating

and nominating targets. The responsibility of a reasonable military commander for decision-making

extends to the anticipated (collateral) damage caused and to the implications of inflicting damage.

According to Rogers, the responsibilities in attack include (1) the evaluation of the importance of targets

and the urgency of situation, (2) the use of intelligence, (3) the choice of weapon, (4) the conditions

affecting the accuracy of targeting, (5) the factors affecting incidental loss or damage and (6) the risk to

which a commander’s own troops are exposed.95 Nevertheless, the accuracy these factors can be

weakened by human omission, flawed target intelligence, adverse weather conditions or technical

defaults despite the technologic advance and research in order to improve the accuracy in targeting.

Apart from Additional Protocol I and the ICC Statute, other soft and hard law instruments chose to

recognise and reaffirm the principles and rules of contemporary targeting, too (e.g. the already

mentioned 1994 ICRC/UN GA Guidelines for Military Manuals and Instructions96 the 1978 ICRC

Fundamental Rules of the International Humanitarian Law Applicable in Armed Conflicts97 or the 2002

US Joint Doctrine for Targeting). The Joint Doctrine gives a lot of consideration to those rules of armed

conflict that impact targeting decisions (basic principles of law of the armed conflict, rules of

engagement, general restrictions, precautions in attack, separation of military activities and

environmental considerations). It acknowledges the potential of joint operations to adversely affect

natural resources and recommends action to develop plans to prevent or mitigate these adverse effects.98

It recognises that it is lawful to cause collateral damage to the natural environment during an attack on

a legitimate military target, although the military commander in charge has an obligation to avoid

needless harm to the environment “to the extent that it is practical to do so consistent with mission

accomplishment.”99 Any damage or destruction to the environment not necessitated by military necessity

and carried out wantonly is prohibited,100 but on the other hand, it is long accepted that unintentional

collateral damage on the environment does not make an attack unlawful;101 therefore, environmental

considerations shall be taken into account at all times (according to Article 35 (3) even against human

considerations).

Military objectives, national security and interests have long been balanced against law, ethics and

eventually against environmental protection by the decision makers and it is difficult to change human

behaviour when it comes to execution in an armed conflict. One way to turn military commanders

towards more thorough environmental considerations is making liability and responsibility for breaching

injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment

which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated…” 94 Antonio Cassese, The Statute of the International Criminal Court: Some Preliminary Reflections, European Journal of

International Law, Vol. 10, 1999, p. 152. 95 A. P. V. Rogers: Zero-casualty warfare, International Review of the Red Cross, No. 837, 2000, pp. 165-181. 96 The instrument reconfirms the application of the principle of distinction (II/4), the principle of proportionality (II/4), the

Martens Clause (II/7) and the general prohibition of destroying civilian objects (III/9). 97 The Fundamental Rules restates that attacks shall be directed solely against military objectives (7). 98 Joint Doctrine 2002, A-5, Appendix A. 99 Ibid. 100 Ibid. 101 See, generally Thilo Marauhn, Environmental Damage in Times of Armed Conflict – Not „Really” a Matter of Criminal

Responsibility?, International Review of the Red Cross, No. 840, 2000, pp. 1029-1036.


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the regulations inescapable and setting compensation for the destruction cause so high that it would turn

any environmental degradation/damage a costly mistake for the parties to the conflict.

2.4. The ICRC’s Customary Rules Study

International Humanitarian Law went through an immense development in the twentieth century.

Notwithstanding the progress (e.g. Geneva Conventions or Additional Protocols), the rules of

Customary International Humanitarian Law (CIHL) developed by the ICRC should not be overlooked

as they not only facilitate the interpretation of the applicable law, but also guide drafters and policy

makers in the course of legislation and application of law. They are the legal and moral foundations of

IHL, universal values to which military conduct is measured. The 26th International Conference of the

Red Cross had mandated the ICRC to prepare a report on the customary rules of IHL. As a result of the

work, a comprehensive study had been completed and published in 2005 (Customary International

Humanitarian Law Volume I Rules).102 Part II of the study deals with specifically protected persons and

objects and three rules within Chapter 14 concern environmental protection during armed conflicts.

“Rule 43. The general principles on the conduct of hostilities apply to the natural environment:

A. No part of the natural environment may be attacked, unless it is a military objective.

B. Destruction of any part of the natural environment is prohibited, unless required by imperative

military necessity.

C. Launching an attack against a military objective which may be expected to cause incidental damage

to the environment which would be excessive in relation to the concrete and direct military advantage

anticipated is prohibited.”

Rule 43 clearly reflects the principle of distinction (between military and civilian objects) and the

requirement of military necessity as well as the principle of proportionality, i.e. according to the drafters,

the general principles of IHL are applicable in case of protecting the environmental (as a civilian object).

The protection accorded by Rule 43 A is not absolute however, as it logically follows from its wording

that natural environment may be subject of attack if it is to be considered as a military objective.103 It

seems therefore that ICRC chose to insert a rule that leaves it to the military commander (or personnel)

to regard environment as a military object in case it contributes to the adverse party’s military efforts

and certain military advantage can be obtained from its destruction, and by this deciding not to afford

protection to the environment by virtue of its inherent values, only as a civilian object. However, the

protection accorded to the environment as a civilian object can be stripped rather easily. Rule 43 B offers

an equally relative protection when it gives green light to environment destruction in case of imperative

military necessity. Although “imperative military necessity” seems to imply extreme cases of necessity,

the term “imperative” is still rather intangible. Rule 43 C is similarly permissive, prohibiting only

incidental damage to the environment (excessive in relation to the military advantage) but it enables not

excessive incidental damage as a result of an attack. Again, balancing between excessive and not

excessive is subject to human judgment and decision. This author is of the opinion that the application

of general principles (distinction, military necessity, and proportionality) similarly to any other civilian

object, afford the natural environment merely a relative protection.

102 Jean-Marie Henckaerts & Louise Doswald-Beck, Customary International Humanitarian Law Volume I: Rules,

Cambridge University Press, Cambridge 2009 https://www.icrc.org/eng/assets/files/other/customary-international-

humanitarian-law-i-icrc-eng.pdf (26 August 2017). 103 According to Art. 52 (2) of Additional Protocol I, these include objects which by their nature, location, purpose or use

make an effective contribution to military action and whose total or partial destruction offers a definite military advantage.

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“Rule 44. Methods and means of warfare must be employed with due regard to the protection and

preservation of the natural environment. In the conduct of military operations, all feasible precautions

must be taken to avoid, and in any event to minimise, incidental damage to the environment. Lack of

scientific certainty as to the effects on the environment of certain military operations does not absolve

a party to the conflict from taking such precautions.”

The focus of Rule 44 is on the possible prevention of environmental damage and the necessity of

precaution. Some contemporary writers suggest precaution to be considered as an emerging principle as

opposed to those who regard it as already existing one.104 Normally, the requirement of precaution as

understood under IHL is not to be mixed with the precautionary principle as applied by International

Environmental Law. Under IHL, (feasible) precaution requires measures to avoid damage to civilian

objects (including the environment), while the rather ill-defined precautionary principle as understood

by IEL in most interpretations means a requirement to prevent harm to the environment even if no

compelling scientific evidence exists regarding the effect of certain actions. According to Gardiner,105

the principle has three important components: “threat of harm, uncertainty of impact and causality,

precautionary response”. Unlike the IHL principle, the precautionary principle as understood by IEL

stands closer to protecting the environment as such rather than understanding environment as a mere

civilian object as is under IHL. Rule 44 seems to wash together (or at least bring closer) the two notions,

which in Bothe’s opinion “amounts to a revolution.”106 According to the study, there is a practice that

supports that “this environmental principle applies to armed conflict.”107 The ICRC experts cite the

Nuclear Tests case108 and the Nuclear Weapons Advisory Opinion to support the above statement, yet,

this author believes that the difference between the notions shall not be blurred, rather, the right approach

would be to recognize the substantive overlap and apply the principle of IEL in armed conflict in as

much as it is consistent with the applicable law of armed conflict. This means that the precautionary

principle under IEL shall conform to and strengthen the applicable rules of IHL.109

“Rule 45. The use of methods or means of warfare that are intended, or may be expected, to cause

widespread, long-term and severe damage to the natural environment is prohibited. Destruction of the

natural environment may not be used as a weapon.”

Rule 45 is the reiteration of Article 35 (3) and 55 (1) of Additional Protocol I. As the drafters of the

study highlight it, now there is sufficient state practice to support that this prohibition obtained

customary nature.110 Unlike the rather lightweight protection offered by Rule 43, Rule 45 provides a

robust, absolute prohibition with no opportunity to derogate. Rule 45 contains a clear and specific

prohibition compared to the rather weak formulation of Rule 43 but it also raises certain concerns. Under

certain degree of damage the principles of distinction, military necessity and proportionality may also

104 Gary D. Solis, The Law of Armed Conflict: International Humanitarian Law in War, 2nd edn., Cambridge University

Press, Cambridge 2016, p. 308. 105 Stephen M. Gardiner, A Core Precautionary Principle, The Journal of Political Philosophy, Vol. 14, No. 1, 2006, p. 36. 106 Michael Bothe & Carl Bruch & Jordan Diamond & David Jensen, International law protecting the environment during

armed conflict: Gaps and opportunities, International Review of the Red Cross, Vol. 92, No. 879, 2010, p. 575. 107 Henckaerts & Doswald-Beck 2009, p. 150. 108 Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s Judgment of 20 December

1974 in the Nuclear Tests (New Zealand v France) case, Order [1995] ICJ Rep 288. 109 Including the following provisions of Additional Protocol I: Basic Rules in Methods and Means of Warfare (Article 35),

New Weapons (Article 36), Basic Rules in General Protection Against Effects of Hostilities (Article 48), Protection of

civilian population (Article 51), General protection of civilian objects (Article 52), Protection of objects indispensable to the

survival of the civilian population (Article 54), Protection of the natural environment (Article 55), Protection of works and

installations containing dangerous forces (Article 56), Precautions in attack (Article 57), Precautions against the effects of

attacks (Article 58). 110 Henckaerts & Doswald-Beck 2009, p. 152.


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be taken into account, but over the incredibly high (impractical and almost unfulfillable) threshold set

by the cumulative criteria (widespread, long-term and severe damage) no such loophole (gap) is offered.

The second part of Rule 45 deals with the destruction of environment used as a weapon. The rule

resonates to the protection offered by the ENMOD Convention111 but its phrasing is more general;

instead of deliberate environmental modification techniques, it refers to the use of environment

destruction as a weapon. It does not include any requirement as to the possible effects, but it is rather a

benefit than a disadvantage, as the categorical prohibition in the role is not weakened by further

criteria.112

3. United Nations Work Program

In 2013, the International Law Commission (ILC) resolved to add the subject of environment protection

in relation to armed conflicts to its work programme.113 The first concerning report114 provided an

overview of the environmental values and principles applicable in peacetime. The second report

identified the existing principles and rules of armed conflict relevant to environment protection.115 The

third report ascertained the rules that are relevant to post-conflict situations.116

The ILC second report was adopted with the aim of identifying the existing rules of armed conflict

directly relevant to environmental protection. When enumerating the principles applicable to armed

conflict, the report reflects an important development: apart from the usual reference to the principle of

distinction, proportionality and military necessity, it also mentions the precaution in attack as one of the

“most fundamental principles of the law of armed conflict.”117 Annex I of the Report proposed draft

principles in order to enhance environment protection and minimize collateral damage to the

environment during conflicts. The principles reconfirm the application of fundamental principles of IHL

(Principle 2). It is also expressed that the natural environment is of civilian nature and may not be object

of an attack (Principle 1). Environmental considerations shall be taken into account when assessing what

is necessary and proportionate in pursuing lawful military objectives (Principle 3). Attack against the

natural environment by way of reprisal is also prohibited (Principle 4). Finally, the Commission suggest

for states to designate areas of major ecological importance as demilitarized zones at least at the outset

of an armed conflict (Principle 5).

4. Nato Activities

Let us now turn our attention briefly to how the already mentioned customary principles have been

translated into the language of North Atlantic Treaty Organization (NATO) documents regulating

111 1976 Convention on the prohibition of military or any hostile use of environmental modification techniques. 112 Art. I (1) of the ENMOD Convention established a much lower and realistic threshold, according to which “each State

Party to this Convention undertakes not to engage in military or any other hostile use of environmental modification

techniques having widespread, longlasting or severe effects as the means of destruction, damage or injury to any other State

Party.” 113 Summaries of the Work of the International Law Commission, 25 August 2017

http://legal.un.org/ilc/summaries/8_7.shtml. 114 A/CN.4/674 ILC Preliminary report on the protection of the environment in relation to armed conflicts, 30 May 2014. 115 A/CN.4/685 ILC Second report on the protection of environment in relation to armed conflicts, 28 May 2015. 116 A/CN.4/700 ILC Third report on the protection of environment in relation to armed conflicts, 3 June 2016. 117 Second report 2015, p. 47.

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activities that may have consequences to the natural environment. This can provide a useful example of

how these principles work in the hands of nations, military authorities, and commanders.

Whether carrying out a specific mission or a military training, during implementation NATO and the

troop contributing nations share a common responsibility with regards to environment protection, i.e.

both NATO and its member states should attempt at eliminating or at least reduction the harmful effects

of military activities on the natural environment. In order to protect the environment, NATO developed

a number of standards and doctrines. According to Kustrová,118 environment protection in NATO serves

enhanced force protection, supports operations and saves money (e.g. on remediation or litigation).

In the net of NATO working groups contributing to the development of environmental policies and

guidelines, the Environmental Protection Working Group (EPWG) plays the most important role. By

the development standardization documents, guidelines and best practices, in the implementation of

operation, it focuses on lessening the possible detrimental effects of military activities on the natural

environment. The EPWG operates under the Military Committee Joint Standardization Board that

reports to the Military Committee, which in turn reports to the North Atlantic Council (NAC).

The Military Committee’s MC 469 NATO Military Principles and Policies for Environmental Protection

document of 30 June 2003 requires military commanders to respect certain environmental principles

during NATO-led activities. The document was updated (MC 469/1) in 2011119 with the aim of

facilitating the integration of environmental protection into NATO-led military activities consistently

with operational imperatives. The updated document details the responsibilities of military commanders

regarding environmental protection during the execution of military activities and acknowledges that

harmonization of environmental principles and policies is needed for all NATO-led military activities.

In order to reduce the impact on the natural environment, NATO commanders are to apply “best

practicable and feasible environmental protection measures.”120 The document provides a dynamic

protection by continuous situational awareness, coordination, information exchange and mission

development. According to the document, military commanders shall respect inter alia the following

principles during NATO-led activities:121

Host Nation law: application of Host Nation law (in case there is no concerning Host Nation

environmental law, theatre agreed environmental law protection standards apply)

Responsibility: NATO and sending states” collective responsibility to protect the environment

with each nation ultimately responsible for the actions of its own forces

Authority: NATO commanders to establish mandatory environmental protection procedures

Coordination between NATO military authorities, host nations and sending nation regarding

environment protection

Information Exchange between NATO military authorities, host nations and sending nations

regarding environmental protection procedures, standards, concerns and agreements

118 Milota Kustrová, The Legislative Background of Environmental Security During Military Activities and Armed Conflicts,

Hadmérnök, Vol. 9, No. 4, 2014, p. 117. 119 www.nato.int/cps/en/natohq/topics_91048.htm (25 August 2017). 120 Ibid. 121 NATO LEGAL DESKBOOK, 2nd edn., 2010, pp. 313-314

https://publicintelligence.net/nato-legal-deskbook/ (25 August 2017).

http://www.nato.int/cps/en/natohq/topics_91048.htm

https://publicintelligence.net/nato-legal-deskbook/


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Transparency: informing host nation and the public of environmental damage and

environmental protection measures

Mission Development: as missions develop, regularly reviewing and updating environmental

protection procedures and standards

Environmental Expertise: NATO commanders’ access to environmental protection expert

advice and support

The adoption of MC 469 was followed by and complemented with a number NATO Standardization

Agreements (STANAG) and Allied Joint Environmental Protection Publications (AJEPP) dealing with

the same subject. These include but are not limited to the following documents which aim at specifying

the principles set by MC 469:

STANAG 2581 Environmental Protection Standards and Norms for Military Compounds in

NATO Operations (AJEPP-1)

STANAG 2582 Environmental Protection Best Practices and Standards for Military Camps in

NATO-led Military Activities (AJEPP-2)

STANAG 2583 Environmental Management System in NATO Operations (AJEPP-3)

STANAG 7141 Joint NATO Doctrine for Environmental Protection during NATO-led Military

Activities (AJEPP-4)

STANAG 7141122 allows NATO “to operate effectively and efficiently together with partner nations as

well as non-NATO nations on environmental protection functions during NATO led military

activities.”123 NATO commanders have to be aware how NATO-led military activities affect the

environment in order to be able to take all reasonably achievable measures to protect the environment.124

The STANAG also provides environmental planning guidelines for military activities in order to

effectively integrate environmental considerations into military activities (e.g. identifying operational

activities with a potential impact on the environment, feasible mitigation measures, pollution prevention

or operational limits imposed by applicable environmental regulations).125 In order to balance

environmental protection with mission objectives, determining the elements of environmental risk

management framework is of key importance. These elements include the Commander’s guidance on

environment protection, developing an environmental plan as part of the operations plan, assigning

responsibilities and resources for environmental protection, periodic checking and taking corrective

actions, and reporting the lessons learnt after action review.126

5. Conclusions and Future Prospects

What sort of conclusions and future prospects can be drawn from this short overview of shortcomings

and challenges? Apparently, the importance of environment protection in peacetime and during armed

122 NATO Standardization Agency (NSA) STANAG 7141, Joint NATO Doctrine for Environmental protection during

NATO-led Military Activities, Edition 6, 15 May 2014, NSA(JOINT)0603(2014)EP/7141 (AJEPP-4)

nso.nato.int/nso/zPublic/ap/AJEPP-4%20EDA%20V1%20E.pdf (25 August 2017). 123 STANAG 7141 2014, p. 1. 124 Ibid p 1-1. 125 Ibid p 2-1. 126 Ibid p 3-1 and 3-2.


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conflicts becomes even more visible once looked at through the standards conveyed not only by

International Humanitarian Law, but also by the generally accepted Human Rights. Among others, the

Universal Declaration of Human Rights of 10 December 1948 adopted by the United Nations General

Assembly confirms everyone’s right to life (Article 3) and to “a standard of living adequate for the

health and well-being of himself and of his family...” (Article 25). But are these relevant human rights

(including the right to a healthy environment) really respected in practice? Not quite so, as observed

through the example of the military operations conducted by NATO air forces in Yugoslavia between

March and June 1999, where studies and reports agreed that the operations “will have a lasting impact

on the health and quality of life of the populations,”127 seeing that ecosystems, water reserves, air, soil

and vegetation were severely contaminated during the operations. According to the report of the

Committee on the Environment, Regional Planning and Local Authorities, as a result of extensive

bombings and air strikes, a dangerous level of toxins and contaminants (such as nitrogen-oxide,

ammonium perchlorate, sulphur or mercury to name a few) remained compromising directly flora, fauna

and human health. By means of the NATO warfare, farming, livestock-breeding and fishing were

affected, and this large-scale environment destruction eventually resulted in diminishing biodiversity,

disrupted reproduction and migration. If not a deliberate disregard of Articles 55,128 56129 and 58130 of

Additional Protocol I, it certainly was at least magna negligentia on the side of NATO forces (decision

makers) to disobey the relevant regulations of Additional Protocol I, which should have made a strong

basis for NATO’s responsibility and liability. In only a 78-day air campaign it became obvious and

undeniable that the existing legal regime to prevent environment destruction is vague and inadequate,

and therefore offers only an ostensible protection for the natural environment.

Though many scholars (including Postiglione131 and Falk132) support the idea of a new draft convention

with regards to environment protection in times of armed conflict, the intention of ecocide being the

fifth international crime against peace before the ICC is premature; what shall be done instead is a wider

and more persuasive dissemination of the environment-related standards of the present IHL regime, a

more convincing promotion of accession (especially to Additional Protocol I) for those states that have

not done it yet and the improvement of state practice – with the aim of intensifying the desire of states

to comply, as well as making deviation costly and regrettable. The “new convention approach” is

intertwined and competing with Polly Higgins’ proposal on ecocide to be considered as the “extensive

destruction, damage to or loss of ecosystem(s) of a given territory, whether by human agency or by other

causes, to such an extent, that peaceful enjoyment by the inhabitants of that territory has been severely

diminished.”133

127 Parliamentary Assembly, Council of Europe: Doc 8925 of 10 January 2001 on the Environmental Impact of the War in

Yugoslavia on South-East Europe (Report of the Committee on the Environment, Regional Planning and Local Authorities),

p. 1.,

http://www.assembly.coe.int/nw/xml/XRef/X2H-Xref-ViewHTML.asp?FileID=9143&lang=EN (25 August 2017). 128 Protection of the natural environment. 129 Protection of works and installations containing dangerous forces. 130 Precautions against the effects of attacks. 131 Amedeo Postiglione, A More Efficient International Law on the Environment and Setting Up an International Court for

the Environment Within the United Nations, Environmental Law, Vol. 20, 1990, pp. 321-328. 132 Richard Falk, The Inadequacy of the Existing Legal Approach to Environmental Protection in Wartime, in J.E. Austin &

C. E. Bruch (Eds.), The Environmental Consequences of War, Legal, Economic and Scientific Perspectives, Cambridge

University Press, Cambridge, 2000, pp. 137-155. 133 Juliette Jowit, British Campaigner urges UN to accept „ecocide” as international crime, The Guardian, 9 April 2010

https://www.theguardian.com/environment/2010/apr/09/ecocide-crime-genocide-un-environmental-damage (25 August

2017).

http://www.assembly.coe.int/nw/xml/XRef/X2H-Xref-ViewHTML.asp?FileID=9143&lang=EN

https://www.theguardian.com/environment/2010/apr/09/ecocide-crime-genocide-un-environmental-damage


- 39 -

But let me return to the NATO air campaign again and underpin the mentioned insufficiency of existing

provisions by one of the main findings of the Regional Environmental Center for Central and Eastern

Europe prepared for the European Commission on the environmental impacts of the military activities

during the Yugoslavia conflict, according to which, “ ... [t]here is no evidence of a large-scale ecological

catastrophe, but pollution is very severe in the vicinity of targeted industrial complexes, such as Pancevo,

Prahovo or Novi Sad, and many valuable ecosystems were disturbed.”134 The question arises, if the

environmental consequences of the NATO air campaign in 1999 or the Gulf War (1990-91) do not

qualify because of the extremely high threshold of Additional Protocol I, then what does? What sort of

unimaginable conflict and environmental catastrophe do we need to change our attitude and persuade

decision makers to lower (or reconsider) the present standards? The solutions may include the change

of state practice or a Fifth Geneva Convention on environment protection in armed conflicts.135

Luckily, IHL is open to the influence of legal principles of other fields of International Law. Through

the principle of humanity or the Martens Clause, green rights and considerations can enter the domain

of IHL and inspire both law-making and practice.

Apart from the moral unease, the inevitability of punishment and improvement of implementation,

further attention shall be paid to those bearing the long-term environmental consequences of warfare,

namely members of yet unborn generations. Environmental development is one of the three pillars of

sustainable development, which is according to the landmark statement of the 1987 Brundtland

Report,136 a “development that meets the needs of the present without compromising the ability of future

generations to meet their own needs.” Reducing the risk of the natural environment being destroyed and

degraded by human impact during armed conflict calls for an improved recognition and respect for the

needs and wants of future generations - implying positive social, economic and political changes.

I believe we can all agree with Pachouri, who emphasised in his Nobel lecture given in 2007 that “...

[n]ext to reasonable politics, learning is in our world the true credible alternative to force.”137 Learning

from our mistakes and doing our utmost in order to avoid environmental catastrophes is indeed in our

and the future generations’ best interest. According to the Sanskrit phrase of Vasudhaiva Kutumbakam,

“the whole universe is but one family”, and this short statement genuinely expresses and promotes

nonviolent conflict resolution and peaceful coexistence between humans and every other organism on

the planet. We should start seeing the appearance and continuous existence of environmental concerns

in legal regimes, on political agendas and news headlines as a final wakeup call and attempt to prevent,

mitigate and reverse the harm we have done to the environment in less than a second of the history of

Earth.

134 Regional Environmental Center for Central and Eastern Europe: Assessment of the Environmental Impact of Military

Activities during the Yugoslavia Conflict, Prepared for the European Commission DG-XI Environment, Nuclear Safety and

Civil Protection, Preliminary Findings, 1999, p. 1 http://www.reliefweb.int/library/documents/unepbalk1.html (25 August

2017). 135 Károly Végh, International environmental legal approaches of the Yugoslavian wars 1991-1999, “And who will desalt

Carthage’s grounds?” Debreceni Jogi Műhely, Vol. 2, 1 April 2005

http://www.debrecenijogimuhely.hu/archivum/1_2005/ki_sotalanitja_karthago_foldjeit/ (21 September 2017). 136 World Commission on Environment and Development: Our Common Future, 4 August 1987

http://www.un-documents.net/our-common-future.pdf (25 August 2017). 137 R. K. Pachauri (Chairman of the Intergovernmental Panel on Climate Change and Nobel Peace Prize winner in 2007),

Nobel lecture, Oslo, 10 December 2007.

https://www.nobelprize.org/nobel_prizes/peace/laureates/2007/ipcc-lecture_en.html (25 August 2017).

http://www.reliefweb.int/library/documents/unepbalk1.html

http://www.debrecenijogimuhely.hu/archivum/1_2005/ki_sotalanitja_karthago_foldjeit/

http://www.un-documents.net/our-common-future.pdf

https://www.nobelprize.org/nobel_prizes/peace/laureates/2007/ipcc-lecture_en.html

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